MARRIAGE
Forms of marriage
Two forms of marriage were recognised in Roman law. The older form was marriage cum manu, or unfree marriage. In this form, the wife entered the potestas of her husband (or of his paterfamilias if her husband was not sui iuris).
The wife in a marriage cum manu was therefore in the position of her husband’s daughter, with all that implies for her property. This form of marriage was uncommon by the late Republic.The more common form of marriage was the free marriage, or marriage sine manu. This form of marriage was notable for its comparative lack of legal consequences. Free marriage shared with unfree marriage the consequence that children of the marriage were legitimate, and so were subject to the potestas of their father (or his father, if he was still alive). In a free marriage, however, the wife’s own status was unaffected. She did not pass into the potestas of her husband, and any property she might own did not pass to him. If she was subject to the authority of a paterfamilias before the marriage, that remained the case following it.
Comparatively speaking, then, the Roman free marriage had very few consequences. There was no change ofpotestas, there were no consequences for the wife’s property or her capacity to contract, and marriage gave the husband no rights over his wife’s person.
The two most important consequences of marriage were that, other than a dowry (considered below), gifts between the spouses were invalid, and that only children of a valid Roman law marriage were subject to patria potestas.
Formation of marriage
A marriage cum manu could be constituted in three ways. The first was coemptio, which was in form a bride purchase. This involved a formal conveyance of the bride to the groom, in a manner similar to the method required for transfer of ownership of certain kinds of property (see Chapter 5).
The second was confarreatio, a religious form of marriage conducted by the pontifex maximus and involving the eating of special bread by the parties. The significance of this form was that only children of such marriages were eligible for the higher ranks of the priesthood. By the third form, usus, a manus marriage was formed by cohabitation for a year with affectio maritalis, the consent to be married. To avoid this consequence, it was necessary for the woman to absent herself for three nights in the year.As stated above, marriage cum manu was uncommon by the late Republic, by which time the normal form was marriage sine manu. The constitution of this form of marriage was simple. It required only consent. Neither the customary marriage ceremony nor the cohabitation following it was the determining factor. As the jurist Ulpian says, “it is consent, not sleeping together, which makes a marriage” (D.35.1.15). If either party was alieni iuris, the consent of that party’s paterfamilias would also be required.
In addition to the need for consent, there were various restrictions on the formation of a marriage. The civil law marriage was specific to Roman law, and therefore to Roman citizens. Only Roman citizens (or citizens of communities to which Rome had extended citizenship rights) had the right, called conubium, to enter into such a marriage. Marriage was a monogamous union, and so a prior subsisting marriage would be a bar. The parties had to have reached puberty, which was settled as occurring at 14 years of age for boys and 12 for girls. Marriage was also prohibited between close relations, including relationships by adoption or by marriage. From time to time, other restrictions were introduced. For example, under the Twelve Tables, marriages between patricians and plebeians were prohibited, though this ban was soon removed. Soldiers were prohibited from marriage between the reign of Augustus and the repeal of the ban in ad 197 by Septimius Severus.
Marriages in contravention of these restrictions were void for all purposes. Thus, for example, a child of an invalid marriage would be illegitimate and would not be subject to potestas.Divorce
There is little evidence of divorce in marriages cum manu. It seems to have been rare, and to have involved a formal procedure which would be a variation on the ceremonies for constitution of a marriage. By the late Republic, these procedures for divorce appear to have fallen out of use, and the same method was used as for divorce in a marriage sine manu.
A marriage sine manu was based on the parties’ consent, and was ended by the ending of affectio maritalis, the consent to be married. This contrasts with medieval and modern law, in which divorce, if allowed at all, is available only on restricted grounds and is an act of the court rather than of the parties. The ending of affectio maritalis might be evidenced by the parties ceasing to cohabit, or by the sending of a notice of repudiation by one party to the other. In any case, some objective indication of loss of affectio maritalis was necessary. For this reason, a bigamous marriage would not terminate the existing marriage.
By the late Republic, divorce was very common among the upper class, the only part of society for which we have good evidence. Following the adoption of Christianity, attempts to restrict divorce were made, but these were mostly limited to penalising unjust divorces.
Dowry
In Roman marriage, it was normal for a dowry to be given to the groom by or on behalf of the bride, as her contribution to the cost of maintaining the household. The dowry might consist of money or other property, or a combination.
As long as the marriage subsisted, the dowry would be seen as the property of the husband, and therefore his to dispose of as he saw fit. However, as we have seen, divorce was very common. This gave rise to a concern to ensure that the dowry would be returned to the wife if the marriage ended.
It became normal, therefore, for the husband to make a binding agreement to restore the dowry on the termination of the marriage. In such a case, the husband was entitled to keep the fruits of the property (i.e. rents and other profits derived from the property, including natural produce such as crops). The capital, however, would be restored on the termination of the marriage. Alternatively, the husband could agree to return an agreed value for the dowry on termination of the marriage. For cases where no such agreement was made, the praetors introduced an action called the actio rei uxoriae (action for the wife’s property). This action allowed the wife to sue for return of a fair proportion of the dowry, as determined by the judge.In the Empire, various reforms were made to the general effect of protecting the wife’s position. Augustus prohibited the sale of land forming part of the dowry without the wife’s consent, and also the burdening of the land with debts even with the wife’s consent. Later, Justinian prohibited sales of land even with the wife’s consent. Augustus did allow, though, the husband to make deductions for necessary expenses, and also made provision for deductions where the wife was guilty of misconduct or had caused the breakdown of the marriage.